19820429 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA i AT DAR ES SALAAM CIVIL APPEAL N0.9 OF 1981 THE REGISTRAR o:rr BUILDINGS •••• ·• -• • ·••.•••••••••••.•••••••••••••.•• APPELLANT Versus INDUSTRIAL PROMOTION SERVICES ( T) LTD............................ RESPONDENT JUDGEMENT MNZAVAS·9 J.K. The respond.ent/plaintitt filed a suit in Kisutu RM's Court against the ap~ellant/defendant where he sought for a declaration that he w~s the lawful tenant of the appellant/defendant in respect of the Western wing on the eleventh f'loor of the Industrial Promotion ·.Services Building to which I Will hereinafter,- for t~e sake of brevity, be referring to as the I.P~S. Building. When the case cmne up for· hearing _..:.fore the lower court on 14-. 11. 80 Mrs. ~ who appeared for Mr • .Mwichande for' 'the appellant/defend,:µit told the Court tru;;,t Mr •. MWicbande learned counsel- for the appellant/defendant: was away and applied for an adjoirmnent; and suggested that '.l;he·oase,be.lll.entioned the following week. Mr. Iakha l~arned counsel for the ·respondent/plaintiff objected·.to the application. The court upheld his objection and ordered,that·the _plain-tiff'. prove bis case in d~·:f'ault of the appellah'.t/defendant'~r appearano.e. The court then proceeded exparte and heard evidence from the chairman of the plaintif.f company orie, Abdul Ha.ji. In his eYidence the chairman told the court (among other th:inge} that the Western Wing on the eleventh f'loor of the I._P.S. . ' btulding was allocated. to his c'ompaq by the allocation committee in December \ 1977 and produced a document (which \Vas admitted and.marked as exhibi~.J.1) • I ·in support of his claim that the appellant/defendant had allocated the,disputed . ' . . . . . t. premises to the plaintiff company,. Abdul Haji told the lower court that the plaintiff C~pEJ.l\V occupied the disputed premises soon after 0. former·tenant, The Norwegian Ag(lllcy for Irnter:nat10ll$l. Development, bad vacated them. In his judgEmJ.ent the learned P.te:inciple Resident Magistrate (as he then · was) said inter ttl.ia: 11 ........ The·1ssue of whethel;' the plaintiff is the',. lawful tenant ought to be answered in the a.fti:r:ma.tive as. evidenced by the letter exhibit P.1-~oh was written by the Regional Commissi~ner, one Rwegasira to the District Developm.$nt Dtrec1;or; ........ the plaintiff compa- ny dwell~--.rl suoh highest administrative and 21••••.• l •. ,; - 2 - political head in the region as the Regional Connnissioner; did not find it necessary to go about looking for another:plaoe to complement fo~ the aiready--:fimi~~d spa~~- c~n:tained ~-··the eastern vf.i.hg~ • .. ~ 4. •.the,. court i·efuses. ; to recognise the photostat copy-the so called letter of allocation to the Indu- strial Consultants. There is no evidence that the said allocation l~tter was the result· of·a properly constituted allocation connnittee. There is no eviaence that the person who signed the docum~nt marked anne- xure n..1 w~s the duiy abthorised person to sign for the aJJ,ocation Committee 11 . . . . . . . . . . The learned magistrate then proceeded and decl~ed the respondent/ pl~intiff the law:f\il tenant of the western V:li.ng on the eleventh floor .of: ·. i · the r.l?.s. building, the suii.t premists. It is against that decision that the R4gistrar of Buildings, (the appellant/defendant) has appealed ta this C~t. Mr. Raithatba; iearned counsel for the ~ppellant/defendant argued that the respondent/plaintiff wholly relied on ~xhibit Pl in sup:,ort of his argument that the disputed premises were la~ully allocated to him. It we.s submitted that Pl was merely a copy of a lette~ Wl'itten by the then Regiona1 Commissioner to the.District Development Direc~or llala and that it was, according to his . argument, . hearsay . . . . evidence which shollld not have been.admitted as ~vidence by the iawer court~ In support of his argument the Cou.r1 \iaS ref~rred to section 34 of the Evidence Act, 1967~ It was the le fl.med counsel 1 s argtuntnt ' .. that . e...-en if the lower court was right in admitinJ ]?l as evidence of allooation the:i court, it was argued, was unfair in taking &f totally different qproach ~ega:~.-:ling the alleged letter of &llocation - Arpiexure Dl to the W11;itten Stat~ent of Defence. It was argue< J that even if Exhibit l'.l. w~ adm::_ssible evidence, it talked about the · .10th floor and not -;hi:) 11th floor o:~ the I. P. S. building where the western : Vl'ing, the subject l).a~er of the sui:t is situ.ate. It was also . argued that in an ~ r t e :PI'Ol'eedin.g the plaintiff is required to prove hill case to the sa'iiflfacti~n of the court and that 11 his burden is not lig htened because the letendant is absei 1.t". In support of this argument the I Cou.itt was referred to page 1426 in -!the Code of Civil . . Procedure by CHI~ 1£,EY and RAO .... Vol. f19• The Court Has asked to allow the. appeal with Q ·~sts.- - 3 - !n rebuttal Mr. Lakha, learned counsel for the respondent/plaintiff argued that as the chairman of the plaintiff had received copy of the letter written hY the Regional Commissioner·he had the right to produce it 1n court as exhibit as, it was submitted, he was the recipient of the copy of the original. Mr. Lakha argued that the copy of the letter - ,P;.1.,amounted to alloca- ' tion of the/ disputed premises to the plaintiff comp~ or at the very least, it was argued, Pl was evidence of confirmation o:f alloc~tion, It was argued that the lower court had ctiocrotiona,;cy- powers to admit P1. It was submitted ' '!') . that as a responsible officer the Regii.onal Commissioner 11 was unlikely to talk on matters which were not true". · It was the learned counsel's argument that P1 was properly admitted and that it was of pro·bative value. · In support of this argument the Court was ' referred to the decision in YUSUFALI V RIAZIDDIN ( 1973) E.A. 74 •... r . As for the argument that the pla:i!ntiff/respondent did not sufficiently prove his claim before the lower court Mr•. La.kha argued that where a ·case is not contested, as it was in this case, a party is not obliged to prove every part of his claim.- The learned counsel argued that the respondent/plaihtiff did not, as submitted by.Mr. Rait~atha, wh~lly depend on P.1 Mr~ ·Lakha·argued that everything d~d not turn on PJ.. · As for the alleged letter of allocation, annexure n1; it was argued· that_ there was no reason why the:trial. court should have considered it 1 and that such remarks as were made by the learned Principal Resident Magistrate regarO.ing rumexure Dl "were entirely superflous". It was argued that as a persotl as high as a Regional-Commissioner wrote the letter (Pl), it was clear th£:.t there was a meetilmg·which had 'allocated the disputed premises it, the respondQllt/plaintiff. Lastly Mr •. Lakha ·argued fha.t the case was not heard ex-pa.rte but iri, default of the appearance of the appellant/defendant. It was argued that as the case was not heard ex-parte the plaintiff was not required to prove his case to the satisfaction of the lower co,.u,t befox~e judgllIDent was entered in his favour. In support of his argument the Court was refer:ced to the decisions· 'in MOSHI TEXTILE MnLS v B. J •. DE VOESJ'. (1975 l L.R. T. 17 and B!DRUDIN and Another vs PYARALI HA.SHAM 0 LAKHANI (1978) L.R.T 126. In rebuttal Mr.• Raithatha argued t;hat even if the hearing in the lower court was not ex-parte, the plaintiff, .;it wat submitted., had the burden to prove his case on a balance of probabilities. The learned counsel argued that the, question before the lower couxt was whetther the letter exhibit P1 amounted to allocation of the disputed pI"em1hses tq 1Jb.e reipondent/pl1:1intiff. · 4/ ....... As for the argument that the lower court acted w1der section 11 A( e) of the Rent Restriction Act Mr. Raithatha argued that the section did not apply in "!:1::>i_s case as the respondent/plaintiff I s argument in the lower court was that the premises had properly been allocated to him.. From my reading of the lower court proceedings and judgement, and the learned counseis 1 · submissions b_efore this Court, there can be no shadow of doubt that the issue before the lower court, and now before this Court, was whether th~ western wing on the 11th floor of the I.P.S. building had been allocated by -~:....- ~Legistrar of Buildings, the appellant 9 to the respondei:rt/ plaintiff. In the lower Court the chairman of the plaintiff company argued that the premises had been allocated to his company and said inter r-i.lia: ••••••."This Western wing had been i=ilJ.00.~+':!d by the Allocation Committee to the plaintiff company in December 1977; I-produce the document (exhibit P1) •••••••••• 0n 23.6.79 •••••••.• ., •• otwo policeman came to the premises alleging that the •••••••••••Premises was allocated to other appli-.. cants. The policeman dragged me to the polrce station••••••••••• I produced my letter exhibit P-1 which I have produced before you". If the proceedings of the lower court and the judgement thereof are anything to go by it is amply clear that the plaintiff company through its chainnan, Abdul Haji, wholly relied on the letter, (Pl) in support of their claim that the disputed pren:ises had properly been allocated to them. Abdul Haji produced exhibit P1 to the police tc ·.ahow ·that the premises were allocated to his company. He also produced the same document before the court in support of his claim that the Si3,id pre1].i.ses had been allocated to the company by the allocation committee8 I 1 wtth respect, agree with the le~rned cour:.Bel for the appellant/ def~ndant 1 s argument that the case f(Y-l:' the plaintiff company turned on the letter admitted as exhibit,..P1~ Exhibit P1 was, as I have already ~ntioned above, copy of a letter written to the Ilala District Develorn,,mt DirectoJ'.' by the Regional Connni- ssioner regarding the disputed prell)1aes.. I her1:iby quote the contents of the letter in ex,.tensc 1 5/ •••.•• e 5 - The District Development Director, Ilala District (For the attention of Ivir. Lu.kinda) RE - ALLOCATIOlJ FOR EXTENSION OF OFFICE l~CCOMlVIODATIOl'J "You will no doubt recall our recent discussion ·in your capa.ci ty as cha;u,:nan of Ilala District Housi..n,c;_ _._~, '"'0ntion Committee regarding I.P.S. application for additional office acconnnodation at the I.P.S. building, to enable them to accommodate additional staff at their head office t.o cope With their industrial expansion programmes. During the discussion reference was made to the availability of such office space towards the end of the year when Messrs. No:;~wegian Agency for Internatwnal Development move from pa.rt of the 10th floor of the building which they currently occupy to their new offices elsewhere. You agreed to have the space given to them but as a formality I thought I should write to confirm this acceptance to I.P.s. Pleas~ do confirm. to them of the alloca- tion." It was, as I have alr.eady stated above argued by the learned counsel for the appellant/defendant· that the lower court should not have ad.mi tted copy of the letter nor sbou:td it have acted on its contents as, it was submitted, the letter a.nd i t:s contents were hearsay evidence. Mr-. Lakha on the otner hand argued tha.t the chairman of the plaintiff had the right to produce exhibit P1 as he ·was the recipient of the letter. With respect to the learned counsel for the respondent/plaint:i.f'f section of . 34 of th.e Evidence Act, 1967' is very clear in sucb matters. Copy/the letter writte:i by the Regional Cormnissioner was clearly hearsay evidence in so far as it sought to prove that the disputed premises had been allocated to the plaintiff company. The auth.or of the letter, the Regional Commissioner should have ~en called and testify · regarding the contents of the letter. As he was not ca).led the contents oft he letter were clearly hearsay evidence and the lower court should not have acted on'the contents leave alone admitting copy of the letter as eviclence in . support of the plaintiff$ claim. 6/ •••••• 6 - ·As to the argument that the plaintiff did not have the burden to prove his case to the satisfaction of the Court ~ecause the case ~as not heard 3X-parte,. it is not in dispute that tm the day the case came tip for hea~ing 9 the appellant/defendant did nbt appear either personally or by an advocate and it wouid therefore appear that the case was dealt With under OR~IX R.6 of the Civil Procedure Code and the plaintiff ccimpany was allowed to proceed ex-parte. As rightly arguec by the learned counsel for the appellant/defendant the plaintiff was required in law to prove his case to the satisfaction of the court. His burden was not lightened because the defendant was absent. It is my view that this is a rule of general application where a plaintiff is allowed to prove his case in the absence of the defendant unless it is a suit falling on negoti~ble instruments. !n the present case and in view of what I have said in connection with exhibit P1 it cannot be said wit~ any stretch of imagination that the respondent/plaintiff made a prima facie case in support of his claim that the disputed premises had been allocat~ to him. Even if for the sake of argument the contents of the letter (exhibit P1) could be taken into account regarding the plaintiff's claim, I am far from being persuaded by Mr. Lakha's argum~t that the content's of the letter amounted to allocation of the premises to the plaintiff company. All that the letter said was that there was a iiscussion with the chairman of the District Housing allocation Committee regarding the disputed premises and that the chairman had ~giteed to allocate the same to the respondent/plaintif'f. The District Chairman o~ Housing allocation committee was asked to confirm the allocation. App::trently there was no evidence that the chairman of the District Housing Comnd.ttee acknowled~d the letter leave alone confirming \ that the said premis~s Jla.d been allocated to the plaintiff company. On the contrary there is a~ t,llocation letter - (annexure D1) dated 20.6.79 written by the appellant/defel\dant, the landlord,to the Managing Director, Industrial Consultants Limited, a:i1oqating to them the disputed premises. Dealing with annexure D1 the leaitn.ed P:t"incipal Resident Magistrate said inter alia: 11 ~re is no evidence to prove that the pe:rson who signed tne document • ••••• • we.,~ duly authorised to sign for the .AJ.: Location Committet. 11 7/ ••• - 7 - It is, to say the least, beyond my comp~ehension that the learned · trial magistrkte should have.wanted to know whether anne:xure D1 was signed by a duly authorised person by the Housing Allocation Committee but fo'Und it proper to treat. exhibit P1 as a proper letter of allocation without even ca..Lling the author of the letter and/or the chairman of .Housi;lg allocation Committee who would have enlightened hk regarding the contents of the letter. It was clearly wrong for the trial court to use double staridal'Gls. As the I.P.S. building was an acquired building under the provisions of the Acquisition of Buildings Act, 1971 the landlord of the building is the Registrar of BuilGings; the appellant/defendant. There was annexure D1 which show.ed that the appellant/defendant had allocated the western wing on·the 11th flour of the I.P.S, building to Industrial Consultants Limited. There was, as I have I hope, amply demonstrated above, no such evidence iri support of the respondent/plaintiff that the said premises had been allocated to them. And lastly I agree With the learned couhSel for the appellant that the provisions of section 11A(e) of the Rent Restriction Act quotted by the learned counsel for the respondent has no application in this case as the respondent's case has all along been that the said premises had been allocated to them. As it was very clear that the western Wing on the 11th floor of the I.P.Si building was properly allocated to the Industrial Consultants Limited on 20~6.79 the lower court's judgement that declared the respondent/plaintiff as the lawf'ul tenant of the said premises was clearly misconceived and it is hereby set aside. The appeal is accordingly allowed With costs., DAR ES SALAAM N.. S. t,ffi'ZAVAS, JAJI KIONGOZI. 29.4.82 Mr, La.kha - May I apply :for leave to appeal as the matter involves points o:f law. Mr. Raithatha - I oppos~ the .. application. As far as it is concerned section 34 of the Law of Evidence is clear. The plaint- iff has no chance of success at all. s/••••• Court - The respondent/plainti.f.f to .file the necessary papers; -· ~ N. s. s, JAJI I. '